Western caught in crosshairs of First Amendment battle

A First Amendment battle is not what Western Carolina University senior Justin Caudell expected when he returned to campus this fall. But Caudell, who is editor-in-chief of the school’s student newspaper, the Western Carolinian, found himself on the other side of the interview more than once in recent weeks.

University administrators shuttered the publication for five days in late September as part of an ongoing investigation into allegations of plagiarism by three of its writers, including Caudell. Fellow college publications and other student media advocates rallied in defense of Western’s student paper.

“I wasn’t expecting this. Absolutely not,” said Caudell, referring to both the closure and the uproar. The university reinstated the paper’s publication privileges on Wednesday, Sept. 29, after a suspension that Caudell and the Student Press Law Center have decried as illegal and unjustified.

“The reason why we were immediately upset was the fact that the university ignored the First Amendment rights that we all share, especially the freedom of the press for us as journalists,” said Caudell, explaining his all-student staff’s outrage at their closure. “Secondly, we have a large staff, and the fact that they were punishing the entire staff we felt was also wrong. Either way, it is illegal, but I think there was really no justification to show that they would have anything to be afraid of.”

The Western Carolinian is produced solely by students. It comes out twice a month and is distributed only on campus. It’s temporary suspension did not disrupt its printing schedule.

The maelstrom of controversy that has erupted around the September suspension is only the culmination of a on-going investigation that started in the summer, when news of possible plagiarism reached administrators’ ears. The allegations surrounded three stories published in the June 18 and July 2 editions of the Western Carolinian that seemed suspiciously familiar to reporters at the Sylva Herald.

When confronted by The Sylva Herald’s editor, Caudell said that he and the advisor to the student paper, Katherine Smith held an internal investigation and closed the matter, or so they thought.

“We concluded that it was over, so to speak, that we had responded to the allegations,” said Caudell.

But a few weeks later, in early August, they started getting requests from staff in the university’s student affairs department, asking for answers about the accusations.

“We had meetings from week to week where we submitted documentation to them that we had compiled and they had some other questions that we answered,” said Caudell, who maintains that he and his staff cooperated with student affairs at every turn.

“Any meeting request that I received or that anyone else on staff received, we responded within 24 hours, and usually met the next day,” he said.

Vice Chancellor for Student Affairs Sam Miller, however, has a different take. It was his department that headed up the investigation, and he alluded to frustrations about the investigation’s pace in the weeks leading up to the suspension.

“I know the Western Carolinian probably has a different view of this, but being able to get the information to wrap up any fact finding is very fundamental,” Miller said. “You’ve got to get the information and be able to look at that, and I think we had several weeks of inactivity.”

Miller’s frustration was apparent in an email dated Sept. 1 to Jeff Hughes, director of the University Center, who was handling an investigation into the plagiarism claim

A copy of the email was obtained by The Smoky Mountain News through a N.C. Public Records Law request.

Miller’s email asked Hughes whether a meeting between Smith and the students at the paper had taken place, and whether Smith had gotten the message across.

“…this meeting with the students needs to clearly convey a sense of urgency, and that everyone has a clear understanding that their editorial judgment/freedom is at stake,” Miller wrote.

A controversial closure

On Thursday, Sept. 23, Caudell said he and other Western Carolinian staff members got an e-mail from student affairs, requesting their presence at a meeting the following morning to discuss the fate of the newspaper.

“I actually e-mailed back to ask for specifics,” said Caudell. “I was curious of what it was about, because I hadn’t received any requests recently before that e-mail.”

Caudell was quarantined from campus with chicken pox on the day of the meeting and Smith, the paper’s advisor, was on medical leave that day as well. So Caudell said another staff member attended and was dispatched with a clear message: cease and desist.

“It was on Friday, Sept. 24, that we were informed the newspaper was going to be shut down and that our staff would be suspended with pay,” said Caudell. “We were informed that we were not allowed to publish either online or in print, which includes Facebook and Twitter.”

When he and Smith returned to campus the following Monday, they swung into action, firing off a request for written justification to the student affairs department. They said they never received anything more than the verbal directive given to their single staff member who had gone to the meeting. Miller declined to comment on how he notified the newspaper of its suspension.

“I’m not going to go into all the mechanics of all those steps,” he said, refusing to elaborate on any discussions with the Western Carolinian.

Smith would not comment for this article, citing instructions from university administration to refer all inquiries to the public affairs department.

By this time, however, Caudell said it was clear to him that the university’s actions were illegal, especially after discussions with the Student Press Law Center about the incident.

Caudell said that when they were stonewalled by the university, they called on the SPLC, who rose to the occasion with a caustic letter sent by its executive director Frank LoMonte to the university, condemning the closure as both illegal and short-sighted.

“Directing a newspaper to cease publishing is the textbook definition of a ‘prior restraint,’” LoMonte said in the letter. “As the Supreme Court has made abundantly clear, a prior restraint may be justified only in the most extreme circumstances imaginable, such as an imminent threat to the safety of American troops. Since we assume that the Western Carolinian is in possession of no national-security secrets, halting its publication is undeniably a First Amendment violation.”

LoMonte went on to condemn the closure as a “gross error in judgment,” and predicted that the university was “about to be the center of a national media cyclone” as a result.

Although the Western Carolinian gets $40,000 of its annual budget from the university, under a 1969 Supreme Court ruling, the school has no legal right to suspend or interfere with publication except in the direst of circumstances. That case — Tinker v. Des Moines Independent Community School District — found that schools couldn’t ban their students’ speech unless it would incite violence or infringe on another students’ rights.

“In our system, state-operated schools may not be enclaves of totalitarianism,” wrote Justice Abe Fortas, penning the opinion for the court. “School officials do not possess absolute authority over their students,” even when those students receive funding, guidance, office space and even staff support from the university.

“The desire to investigate a plagiarism claim in no way rises to the requisite level of justification under Tinker,” said LoMonte in his letter.

The student paper of N.C. State University, The Technician, also rushed to the paper’s defense, crying foul on First Amendment grounds.

“Shutting The Western Carolinian down for any period of time, whether it was a few hours or a few days, is unacceptable,” said an Oct. 1 editorial. “These accusations [of plagiarism] do not take away The Western Carolinian’s staff’s rights to free press.”

When asked whether university administrators knew the suspension was a violation of the First Amendment, Miller also declined to comment.

“I’m not going to discuss our internal conversations,” he said. He also refused to say whether the letter from the Student Press Law Center and other college publications affected his decision to reinstate the Western Carolinian.

Miller maintains that it was renewed cooperation from the newspaper that lifted the ban.

“We had the participation by the newspaper staff in the review process,” Miller said.

Upholding integrity

Although he didn’t explicitly defend the university’s actions, Miller said that upholding responsible free speech was part of the investigation’s purpose.

“I’ve been very concerned about ensuring the Western Carolinian has the freedom to write and print and cover whatever, and I know they are striving to live up to those highest ideals of journalism,” Miller said. “And that, I think, is what was so troubling about the initial allegations.”

Miller’s office has published no report on the findings of its investigation. They issued a vague statement that neither absolves nor condemns the Western Carolinian.

“I have concluded that, regrettably, mistakes were made on multiple levels,” Miller said in the statement, going on to say that, while the university’s student code of conduct could be applied, they do not intend to pursue the matter.

As for Caudell, while he sees this as a learning opportunity for the paper’s staff, he also feels that the matter was wrongly handled by the university.

“I think the investigation should have continued to have gone on, and if problems were to have been found, a disciplinary action could have been considered at that point,” Caudell said. “But regardless of if plagiarism occurred, the newspaper shouldn’t be shut down.

“I think, as of right now, we are taking a look at the newspaper and seeing if any changes are going to need to be made or if there are certain areas that need to be strengthened,” which is one thing that Caudell and Miller agree on.

“I do think this is an area in particular that, nationally, college students are having difficulty with,” said Miller, “When you’re in a Wikipedia world, it can be difficult. We made some mistakes and we need to do more to help put in place systems and training and address some of the issues that contributed [to the problem].”

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